19 Ala. 626 | Ala. | 1851
The 6th section of the 13th chapter of the Military Code, approved December 30, 1837, which gives a summary mode of proceeding against sheriffs and constables for failing to collect and pay over, &c., militia fines to the proper paymaster, does not repeal the act giving the paymaster a right to commence a suit against said officers for failing to collect such lines, &c., before any court having jurisdiction thereof. We consider the summary remedy given by the act referred to, as merely cumulative, and not in conflict with the provisions of the law giving the general remedy. The objection, therefore, to the mode of suing here is not well taken.
We think, however, that the declaration is defective in not setting forth the names of the persons against whom the fines were assessed, and the several amounts thereof, as stated in the certificate of the President of the Court Martial. This certificate is made by the statute to operate as a several writ of execution against each of the persons named therein.
The general rule of pleading requires that the cause of action be stated with sufficient certainty, clearness and precision to enable the defendant to prepare to defend himself against the action, and to plead a judgment thereon in bar of another recovery, &c.—1 Chitty’s Pl. 255. We believe the rule is without exception, that whenever it is necessary to produce the process of any court, either to show the inducement to the cause of action or to sustain the action itself, the declaration must substantially describe such process.—2 Chitty 291. As this view of the case shows that the demurrer ought to have been sustained, we have not thought it necessary to notice the other objections.
Let the judgment ho affirmed.
